Rule 60(b)(5) does not apply to reconsideration of an order dismissing a request for injunctive relief

Rule 60(b)(5):  In 2011, in Ognibene v. Parkes,[1] the Second Circuit upheld New York City’s law limiting political contributions by companies “doing business with” the City that are commonly known as “pay to play” rules and denied injunctive relief. Three years later, the Supreme Court issued its decision in McCutcheon v. FEC,[2] and held that Congress may not limit the aggregate amounts that donors can contribute to candidates and political committees during an election cycle.  Plaintiffs moved under Rule 60(b)(5) for relief from final judgment in light of McCutcheon.  While Rule 60(b)(5) does apply to orders that provide for ongoing injunctive relief, it does not apply to reconsideration of an order dismissing a request for injunctive relief. “Even assuming arguendo that McCutcheon uprooted the legal foundation of Ognibene I and II such that those decisions are wrong and the “pay to play” rules are unconstitutional, plaintiffs are barred from using Rule 60(b)(5) as a vehicle for seeking relief from the February 2009 order because that order does not have prospective application.”  (Plaintiffs also moved for relief under (b)(6) but did not assert different reasons than those asserted under subsection (5) and did not otherwise set forth “extraordinary circumstances” justifying relief from the previous order.) Tapper v Hearn, No. 15 Civ. 2249 (2d Cir. Aug. 10, 2016) (Hall, J.).

 

[1] 671 F.3d 174 (2d Cir. 2011); see also Green Party of Conn. v. Garfield, 616 F.3d 213, 219 (2d Cir. 2010) (upholding Connecticut’s ban on campaign contributions by government contractors).

[2] 134 S. Ct. 1434 (2014).